Locked in car park

[Annoying Twit]

I don't have the legal expertise here to add much, but I feel the OP's frustration and pain.

 

The only thing I thought of is that: if the college is publically owned, then the Freedom of Information Act should apply. And hence Fred should be able to request information concerning the car park via the FOI. Would be telling if there were meetings dicussing the need to replace the barrier soon before the "incident".

 

I'm appalled at the way the court appears to be trampling all over Fred's legal rights and taking the claimant's side on things.

 

I find it very informative to read of experiences of this type. Are there other epic legal threads around that people could recommend? Particularly those that reached a conclusion.

[Annoying Twit]

I don't claim detailed knowledge of the law and courts. But something seems wrong to me about the way the court, the judge, and the barrister are acting. It almost seems to me as if they have contempt for Fred, as a presumably ignorant member of the public, which is why they're prepared to just fob him off (counterclaim not detailed enough) and why they seem

 

With the film as it is, surely an independent engineer would give an opinion as to (i) whether or not the damaged claimed was already evident before Fred "interfered" with the barrier, and (ii) whether or not the claimed damage was consistent with Fred's actions.

 

I'd like to see the whole film, but can't offer any proper opinion. I'm just a nosy b'tard.

[Annoying Twit]

I may have missed it, but has the college ever said exactly what the damage was?

[Annoying Twit]

On looking at the video on youtube, there appears to be quite a varied and interesting set of videos listed as "related videos" over on the right hand side.

 

[Annoying Twit]

It's little wonder the barrier was broken if they locked the car park barrier at 12pm half an hour before classes finished. I wonder how many people actually passed through that barrier between 12pm and when Fred arrived?

 

Not only on that day, but potentially on many previous days too.

 

Is Fred going to FOI the college on all discussions in meetings (etc.) where the barrier was discussed?

[Annoying Twit]

Patma,

 

If PCAD is subject to answering an FOI request then I would ask the following in addion to that already susggested about model, make, date of installation, mtce regime, etc

 

1) what exactly was the damage to the barrier (find out if it did all need replacing!).

 

2) how many times and for what reasons has the maintainer has been called out in the previous 24mths to fixed faults with the barriers, their nature and fault correction required.

 

I have seen FOI requests made in other situations for other problems.

 

A good thing to have on a FOI request is to request the minutes of meetings where the barrier (or other thing) was discussed. This can reveal all sorts of weird and unexpected stuff. Though, you can't be too general with the request or that can lead to the request being rejected.

[Annoying Twit]

Maybe we'll get some answers when the insurance documents disclosure arrives:)

I'm also thinking maybe some more FOI questions might be a good idea.

Oh yes and will hopefully be speaking to the Insurance frauds bureau people tomorrow

 

 

Be careful of making repeated FOI requests to the same organisation. If you go to the information commissioner's site, they give advice, including under what circumstances requests can be refused. A large number of requests is one of the reasons. I don't know how many would be a large number, but the commissioner's office (or whatever) has a phone help line that can give advice.

 

It's also important that the request is sufficiently general to capture information from the different places it may exist within the organisation, but not so general that it misses important information. As an example, a group opposed to swimming pool closures once FOI'd a council for minutes of meetings discussing a swimming pool. They found that the pool was discussed far more frequently by the planning committee (or whatever it was called) who were discussing what to do with the "site". Eye-opening.

 

I'm reading this thread passively. I'm very confused as to what's going on, and clearly it is far from simple. The college (and their legal representatives) seem to have been assuming an easy victory due to the conviction. I'm not sure how hard it is to overturn such a conviction, or how much importance a judge will place on it if not overturned. Certainly comments of the judge seem to indicate he is leaning towards the college.

 

However, may I take the position of the devil's advocate. The college seems to have assumed an easy victory, and possibly (we're only seeing one side of the story on this thread) have not given the preparation of the case the care it deserved. (At least!). Some parts of this thread are almost a joyous victory celebration, and it worries me slightly that similar mistakes could be made on this side. For example, it is assumed that even if a poor verdict is given in this case that an appeal will be a no-brainer win. Is it really that sure?

[Annoying Twit]

Well done and good viewpoint Natalie. Either the deposit is protected or it's not. There is no defence if it's not, surely a barrister should make this clear but then that means no fees for defending the indefensible. Hope you took him for 3X plus the deposit.

 

Off topic, but there has been at least once case where the deposit was protected after litigation started, but before the date of the court case, and the judge accepted it. I don't have a link however.

 

Back on topic, one reason I read threads such as this is to learn stuff that might help me in my real life. One thing I've learnt is that if anyone accuses me of any sort of damage, to fight like hell even if at the time it looks as if I'm only risking a caution.

Edited July 16, 2009 by Annoying Twit

[Annoying Twit]

Thanks for your advice about FOI requests I will certainly be careful to follow the guidelines.

 

You were too quick and answered before I could edit the original post to include: http://www.ico.gov.uk/

[Annoying Twit]

My LL had protected my deposit before the court hearing (actually he returned it the day after he received the court papers telling him I was suing him) but I continued and the judge awarded me 3x the value of the deposit.

 

Yes, I believe this is the usual result in such a case. But I did hear of one case where it went the other way in the same situation.

 

Returning to the topic, it could go strangely in this case, it certainly looks like strange things have happened so far.

 

But on the balance of probabilities, perhaps this should be the college's theme song: YouTube - Lindsey Buckingham- Trouble Live 1993

[Annoying Twit]

Just when you think things can't get any more strange .....

[Annoying Twit]

I'm unsurprised by this development. I'm no lawyer, but the existing caution appears to be the strongest evidence they have, particularly since Fred accepted it initially. How easy will it be to overturn this caution? And will Fred now be able to get a stay given that the POC are being amended?

[Annoying Twit]

That's the new development folks. Bear in mind that the judge explicitly got the claimants to agree that the caution would not be used at the Directions Hearing and for that reason refused Fred's application for a stay in proceedings pending his appeal against the caution.

 

Is it possible that they will manage to get the POC amended without Fred being given a stay while the caution is appealled?

 

Note that I'm not asking whether this is proper procedure, would be fair, etc. I'm asking whether it's possible that this could happen.

 

Barristers and solicitors should have a good understanding of the legal process, both how its supposed to work theory and how it will work in the real word. I'm concerned that this amending of the POC is one of the "tricks up their sleeves" (as suggested by a previous poster) that they might have.

 

I think that's so true. all the help and support from CAG has boosted Fred's chances no end. From being a single individual with little or no idea of how to defend himself, he's become someone with a wealth of support and experience to call on and what's more this thread has got thousands of views from others who might now feel that if Fred can do it, so can they, and will go on to tackle their own particular battles with CAG support.

All for one, one for all and all that:-D

 

Fred hasn't actually done it yet. I hope he does, but the chickens haven't hatched yet.

[Annoying Twit]

Yes it is quite possible AT in fact if you were the cynical type and you knew what happened last thursday you might think that some effort has been put into ensuring that Fred's caution appeal was not heard until AFTER the hearing which in the light of this latest development makes more sense than it did a few days ago.

 

Hmmm. But if the current court case doesn't go Fred's way, there's the appeal you mentioned. That would be some time later I'd guess. So surely that would be after any appeal of the caution has run its course.

 

If there's one thing I've learned from this thread, under no circumstances accept a caution for something that I didn't do. According to this thread, they turn up on CRB checks, are permanent, and of course we see the admission of guilt turning being used as evidence in a civil court in Fred's case. In the previous thread, some people say they cannot be appealed, but later on there's the mention of a senior police officer being able to withdraw them.

[Annoying Twit]

In short, then if Fred didn't damage the barrier, then no offence of criminal damage (or whatever the charge was) doesn't exist. And that gives grounds for expunging the caution. Is it that the "evidence of the offenders guilt" was fraudulent? Or is it "other mitigating factors"?

[Annoying Twit]

Of course we cannot possibly confirm or deny whether you have correctly identified some of the reasons the caution was issued in 'breach of process'.

 

I'm a very patient person.

[Annoying Twit]

Before the amended POC's were accepted, I was of the personal opinion that Fred is getting railroaded by the entire legal process. Now, even more so.

 

It's one thing to gather and prepare evidence. But if the legal system isn't going to play ball, what then?

[Annoying Twit]

Once again I wish to emphasise that I'm taking (unsolicited ) the role of the Devil's Advocate.

 

Without looking up the details, I believe that Fred entered some form of counterclaim against PCAD, to which no defense was entered. When Fred asked for a default judgement, he was fobbed off with a comment that the claim was "insufficiently detailed".

 

Is this right and proper behaviour by the court? Without knowing the exact details, it's hard to comment. But I don't believe that it's right and proper that a case should just be ignored like that. I think it would be interesting if a lawyer were to give that case the once-over, and comment on whether the case presented was properly or improperly ignored.

 

I've seen it written that the "legal system" as a whole will not treat litigants in person seriously, and they are rarely or never taken seriously. While I do not have the legal knowledge (nor have I seen Fred's case) to say for sure, perhaps the example mentioned in the previous paragraph already shows that the court is not playing ball. And if they can ignore Fred's previous counterclaim, what other (potentially) improper things might happen?

 

Here's a web site which mentions the problem that Fred may be facing now:

 

Litigant in Person

 

How does this site help?

 

Many cases are lost, not because they are inherently bad cases, but because LIPs may make technical or procedural errors that are then exploited by their legally trained opponents. Despite reforms introduced by the Civil Procedure Rules (CPR), there is still a tendency for some Judges to pay more attention to professional lawyers than to Litigants in Person – a situation that the lawyers are, of course, quick to capitalise upon. We hope that this site will help LIPs to avoid these pitfalls by providing background information on court procedures, the English legal system, the CPR and, where appropriate, statues and case law. We also aim to provide a one-stop source of contact information for support groups and information services of use to LIPs.

 

Fred's counter claim that was (as far as I can see) just ignored ..... was it inspected by the Community Legal Service before Fred submitted it to the court?

 

http://www.hmcourts-service.gov.uk/cms/1343.htm

 

 

5.3 It is not the function of court officials to give legal advice. However, subject to that, they will do their best to assist any litigant. Litigants in person who need further assistance should contact the Community Legal Service through their Information Points. The CLS are developing local networks of people giving legal assistance such as law centres, local solicitors or the Citizens' Advice Bureaux. CLS Information Points are being set up in libraries and other public places. Litigants can telephone the CLS to find their nearest CLS Information Point on 0845 608 1122 or can log on to the CLS website for the CLS directory and for legal information. [url=http://www.hmcourts-service.gov.uk/cms/1343.htm#top][/url] |

 

15.4 The RCJ Advice Bureau off the Main Hall at the Royal Courts of Justice is open from Monday to Friday from 10 am to 1 pm and from 2 pm to 5 pm. The bureau is run by lawyers in conjunction with the Citizens' Advice Bureau and is independent of the court. The Bureau operates on a 'first come first served' basis, or telephone advice is available on 0845 120 3715 (or 020 7947 6880) from Monday to Friday between 11 am and 12 noon and between 3 and 4 pm.

 

Edited August 1, 2009 by Annoying Twit

[Annoying Twit]

LD seeem to have created a situation where Fred was denied a stay until the appeal of the caution was complete, but they still got the caution onto the POC's. In my devil's advocate position that makes me think that LD are very skilled at manipulating the system. This could be refuted if the strategy backfires on LD at some later time, but at present it looks as if they are playing the system very effectively.

 

Since the CLS is there, would it not be a good idea to get them to double check some of the documents. Even the counterclaim (I think) that was ignored (my interpretation), what about having it checked in retrospect? I'm not saying that TLD's work needs to be second guessed (apologies TLD), but thinking along the lines of having an opinion given by a recognised legal institution which might be useful in any appeal based on legal process.

 

Edit: Let's assume for a moment that Fred is being railroaded (which is only my opinion at present). Let's say that sufficient evidence can be gathered to show that due process has not been followed, including CLS and/or other opinion, information from the manufacturer of the barrier, etc. What happens if Fred then goes to his local MP with this problem. He can't walk in with 50 pages of documentation and expect his MP to read it. But let's say that a brief summary is enough. What can the MP do? Unless they're standing down next election due to expense claims or whatever, they possibly won't want to fob Fred off. As if anything came out in the papers later the MP would not want to be seen as complicit in Fred being railroaded. Possibly. I'm not sure what an MP can do as the legal system is independent (we're told) of political influence. But if I was the MP, I'd want to be seen as doing something to stand up for the "little guy".

Edited August 1, 2009 by Annoying Twit

[Annoying Twit]

I presume that since the agreement not to include the caution was given in court, that there is very hard documentary evidence of the agreement.

[Annoying Twit]

In some educational institution it is said that when VAT is reclaimed, ths happens in an unusual way. Basically some part of the university will pay for some goods and services including VAT. The receipts then go to a central finance office which will reclaim the VAT. However, the reclaimed VAT may not be returned to the department or division that spent the money, but go into another account within the institution, and spent on other things. So, as far as some estates manager managing a budget is concerned, the amount paid out of his/her budget for some goods and services will be the amount including VAT. So, if someone didn't think carefully enough about the costs involved to the institution, they could easily get it wrong. Particularly if they weren't the sharpest tool in the box.

[Annoying Twit]

On that evidence Fred was advised to accept the caution and be done with it by his solicitor.

 

I'm reminded of Prince Charles' lawyer in Su Townsend's book "The Queen and I".

[Annoying Twit]

In signing the caution, what did Fred actually admit to? Is it specific concerning the damage caused, or did he admit only to raising the barrier?

[Annoying Twit]

I'm not sure what the actual words were, Annoying Twit, but I'll see what I can find out.

I do know he insisted that he had done nothing deliberately or maliciously.

 

I'm sure you can guess what I'm thinking, and have thought of that and prepared for it already.

 

But I was thinking that in one simple way of looking at things, the caution is the key to the whole thing. Because when accepting the caution, Fred admitted guilt. But, he admitted guilt of what exactly? "Damaging the barrier"? Just lifting the barrier? There must be some wording there, which may or may not be compatible with the civil case being brought by PCAD.

[Annoying Twit]

This is too late for Fred, as he accepted the caution, but I note with interest the following from the description of the offence of criminal damage.

 

Criminal Damage: Legal Guidance: The Crown Prosecution Service

 

Mens Rea

 

(Archbold 23-8 to 23-12)

After the House of Lords decision in R v G [2004 1 A.C. 1034 the mens rea for criminal damage is no longer as stated in Caldwell.

Recklessness for the purposes of the Criminal Damage Act is now defined as follows:

A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to:-

i) A circumstance when he is aware of a risk that it exists or will exist;

ii) A result when he/she is aware of a risk that it will occur;

And it is, in the circumstances known to him, unreasonable to take the risk.

If the barrier lifted easi ly without force, then I personally wouldn't expect damage to occur. Hence had it been me, therefore, there wouldn't be Mens rea. If I had to use force, then it could be said (I believe) that I had been reckless, as force can break things. But without force, I, and possibly other "reasonable" people, might not have expected damage. If I remember correctly, Fred in the video carefully lifts the barrier first to see if it raised easily. Surely that would count against recklessness...

 

Also, I wonder whether Fred had "Lawful Excuse". The advice on that concentrates on people who damage car clamps removing them. And it says that Lawful Excuse does not apply when someone knowingly parks somewhere where they know that clamping is likely to occur. Since Fred had no reason to expect that the carpark would be shut and the intercom unmanned, could it be that he had lawful excuse to take actions to get his car out of the park?

 

http://www.webtribe.net/~shg/Criminal%20Damage%20Act%201971%20(1971%20c%2048).htm

 

5 “Without lawful excuse”

 

(1) This section applies to any offence under section 1(1) above and any offence under section 2 or 3 above other than one involving a threat by the person charged to destroy or damage property in a way which he knows is likely to endanger the life of another or involving an intent by the person charged to use or cause or permit the use of something in his custody or under his control so to destroy or damage property.

 

(2) A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—

 

(a) if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances; or

 

(b) if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed—

 

(i) that the property, right or interest was in immediate need of protection; and

 

(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

 

(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.

 

(4) For the purposes of subsection (2) above a right or interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise.

 

(5) This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges.

Certainly I wouldn't want to leave my car stuck in a college car park over the weekend, there would be considerable risk of vandalism. And I would honestly believe that lightly lifting the barrier would be a reasonable measure to protect my car. Edited August 3, 2009 by Annoying Twit